In the past few days, the deaths of Philando Castile and Alton Sterling have rightly dominated headlines and my social media feeds. In the days and weeks after of such tragic and senseless events, it is hard not to feel helpless. As I was listlessly scrolling through my twitter feed this afternoon, I was struck by this link to a vox.com article entitled "5 questions every citizen should know about police accountability.' It references a number of tweets from ljeoma Oluo, an editor for 'the Establishment' and urges those wondering what they can do to help to ask themselves whether they are familiar with their city’s police accountability procedures. It also asks about mechanisms for civilian oversight, as well as the threshold for an officer being indicted. While Canada’s systems are slightly different, and handled provincially, the message and answers are just as important so I'm sharing the procedures for my city and province here.
In Ontario, police accountability is handled through the Ontario Independent Police Review Board. It receives and investigates complaints against municipal, regional and provincial police services. The OIRPD must believe that there are reasonable grounds to believe that misconduct occurred in order for the complaint to be substantiated. If the complaint is less serious, then it might proceed to an ‘Informal Resolution.’ In more serious cases, the chief must hold a disciplinary hearing. The link to the complaint form is here.
If an incident involving police and civilians has resulted in serious injury, death or allegations of sexual assault, then that matter is referred to the Special Investigations Unit (SIU). The SIU is a civilian agency, independent of the police. It is mandated by the Police Services Act. Incidents that fall into their mandate (death, serious injury, sexual assault) must be reported to the SIU by the police service, but can also be reported by the complainant or another person. The SIU can be contacted here.
Finally, The Ontario Civilian Police Commission (OCPC) is an independent oversight agency that hears appeals of police disciplinary decisions and conducts investigations and inquiries into the conduct of chiefs of police, police officers and members of police service boards.
The Canadian system is different from the American one. Here, officers aren’t indicted, but they can fact disciplinary hearings or criminal charges. (Remember Cst. Forcillo who was tried and convicted of attempted murder in the death of Sammy Yatim.) Ontario’s Court of Appeal recently clarified the standard of proof in disciplinary proceedings as ‘clear and convincing evidence,’ which is a higher threshold than the civil standard of a balance of probabilities, and allows for less scrutiny of police officers.
Just because the frameworks are there does not mean that they work perfectly or respond properly to police misconduct. In fact, Ontario recently ordered a review of police oversight agencies. Also, Ontario’s Ombudsman just recently released a report on the adequacy of police training to de-escalate violent situation. It asked whether police were doing enough to ‘talk people down’ and found that it wasn’t that police officers weren’t following their training, it was that they weren’t properly trained. The report makes 22 recommendations in total, focusing on legislative changes and an updated use-of-force model that focuses on de-escalation.
In instances where the contact with police resulted in an individual being charged, the Charter may also provide some recourse. Cases such as Stacy Bonds, who was strip searched and kicked by Ottawa Police officers resulted in a stay of proceedings, meaning that the judge tossed out the charges given the egregious Charter violations.. Meanwhile, the Supreme Court has held in the case R v. Nasogaluak that an individual’s sentence may be reduced as a remedy for excessive use of force during their arrest.
It is important for defence lawyers to be mindful of these cases and to be viligant about ensuring that evidence of excessive use of force or police brutality are being brought up in court. Regardless of whether it results in a remedy for the specific client, it can establish a pattern behaviour that highlights systemic issues of discrimination. Such was the outcome of a recent case in Toronto, where Justice Heather Armstrong stayed an impaired driving charge after the accused person was strip-searched. She found that it was necessary to send a clear message to the police force that this practice was unacceptable, stating that anything short of a stay would be “judicial condonation of egregious police misconduct and erode the public’s confidence in the administration of justice.”
Canadians need to stand in solidarity with Americans in the wake of these events and cannot rest easy with the false idea that this sorts of things cannot or do not happen here. Knowledge of the complaint and oversight procedures are an important step in working towards police accountability.